Sactwu's late intervention in FMF's labour case seeks to delay and frustrate the course of justice

The 11th hour action by South African Clothing and Textile Workers Union (Sactwu) to intervene in the FMF's High Court challenge to S 32 of the Labour Relations Act (LRA), is yet another in a long line of attempts to delay the legal process and frustrate the course of justice by unions, bargaining councils and the Department of Labour. Sactwu must explain why and why now.

Sactwu has had 17 months since the Free Market Foundation (FMF) launched its action on 5 March 2013. Why, when the application is nearly ripe for the parties to ask the Pretoria High Court for a hearing date, has the union only now indicated its intention to bring an application to be a party to the case?

Sactwu cannot plead ignorance. From the beginning, they were well aware of the FMF's action. Within 24 hours, on 6 March 2013, their response appeared on the Cosatu website, stating their intention to, "table a proposal to Cosatu to resist this unacceptable attack at our collective bargaining rights (sic)" and that this "may include a massive national protected strike of proportions that this country has last seen during the times of our fight against the apartheid Labour Relations Act".

So why did they wait 17 months to apply to intervene in their own name? The obvious inference is that Sactwu is hell bent on frustrating the finalisation of this matter.

The facts are indisputable. In line with Sactwu's proposal to Cosatu, the Confederation duly brought an application to intervene in the proceedings. Although Cosatu had not been a named respondent, and their application was also late and technically out of time, on 23 July 2014 the FMF's attorneys wrote to the various parties agreeing to their participation and simultaneously made various practical proposals aimed at expediting the completion of the High Court proceedings.

A court date was in sight.

One day later (on 24 July 2014) Sactwu's attorneys advised the FMF that they had been instructed to bring an application to intervene as a respondent in the proceedings.

Entrepreneur Herman Mashaba, former FMF chairman who still leads the labour law challenge in his private capacity said, "This is blatant contempt for the rule of law and of our democratic right to challenge a piece of legislation which we believe is illegal under the Constitution and damaging to our society. Organised labour and other named respondents have every right to disagree with us and to present their arguments in court. However they have no legal, moral or ethical right to use tactics to prevent the natural course of justice and we call on the relevant government ministers to take notice and action to stop this abuse and manipulation of lawful proceedings now".

In an appeal to the new Minister for Small Business Development, Mashaba said that one of her first priorities should be to become familiar with the consequences of S 32 and to work towards amending it so that her colleague, the Minister of Labour, has some discretion to decide whether or not to extend bargaining council agreements. "We would be very happy to discuss this and other matters relating to barriers preventing small businesses from flourishing as soon as she is able to meet us," he said.

Editors' Note

S 32 of the Labour Relations Act (LRA) 1995 prevents the Minister of Labour from exercising discretion in the decision to extend bargaining council main agreements across entire sectors to all parties including those who did not participate in the wage negotiations, subject to criteria regarding majority representation. The Minister is compelled to extend the wage and conditions of employment agreement without any regard to the wider socio-economic consequences for society and especially for the now over 8 million unemployed.

The FMF legal challenge is to amend S 32 by one word: change "must" to "may" extend (agreements) which will restore ministerial discretion to the pre 1994 basis. This simple but powerful change will have a profound effect on small businesses and their ability to employ more workers especially unskilled workers who tend to be young and black individuals.

Statement issued by the Free Market Foundation, August 25 2014

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